Key v The Attorney General, Cape of Good Hope Provincial Division and Another

The applicant, Mr M R Key, was an accused in a pending criminal trial arising from the collapse of Tollgate Holdings Ltd. In early 1993, prior to the commencement of the interim Constitution, representatives of the Office for Serious Economic Offences searched his home and offices under sections 6 and 7 of the Investigation of Serious Economic Offences Act 117 of 1991 and seized documents. These documents were later used by investigators and accountants, and formed the basis of criminal charges brought against him in February 1994. Before his trial commenced, the applicant launched motion proceedings challenging the constitutionality of sections 6 and 7 of the Act and seeking the exclusion of all evidence obtained under those provisions, arguing that they infringed the right to privacy in section 13 of the interim Constitution.

No order was made on the constitutionality of sections 6 and 7 of the Investigation of Serious Economic Offences Act. The Court held that evidence obtained under those sections prior to 27 April 1994 was not rendered inadmissible merely by the coming into force of the Constitution. The admissibility of such evidence was left to be determined by the criminal trial court. No order as to costs was made.

This case is a leading authority on the non-retrospective application of constitutional rights in South African law. It confirmed that the interim Constitution does not invalidate pre-constitutional conduct that was lawful when undertaken, and that the Constitution does not automatically exclude evidence obtained before its commencement. The judgment also clarified that admissibility of evidence, including potentially unconstitutional or derivative evidence, is governed by a flexible fairness-based approach determined by the trial court.